Citation Nr: 0213948
Decision Date: 10/09/02 Archive Date: 10/17/02
DOCKET NO. 98-12 504 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for arthritis of the lumbar
spine.
REPRESENTATION
Appellant represented by: Oklahoma Department on
Veterans Affairs
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
INTRODUCTION
The veteran had active service from April 1962 to February
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of rating decisions of the Muskogee,
Oklahoma, regional office (RO) of the Department of Veterans'
Affairs (VA).
The Board notes that the veteran has requested a hearing
before the Board at the RO. He was scheduled for this
hearing in June 2000, but did not appear. A May 2000 letter
from the veteran stated that he was moving to Pennsylvania in
May 2000, and that he desired a hearing there. However, the
veteran has not contacted VA since May 2000, and has not
provided his new address. A review of the record shows that
mail from VA sent to his most recent address of record, the
Oklahoma address, has been returned as undeliverable. It is
the burden of the veteran to keep VA apprised of his
whereabouts. If he does not do so, there is no burden on the
part of VA to turn up heaven and earth to find him. Hyson v.
Brown, 5 Vet. App. 262, 265 (1993). The veteran's
representative was contacted by VA in September 2002, but has
replied that the veteran's current address is unknown.
Therefore, the Board will proceed with the review of the
veteran's appeal without his requested hearing.
FINDINGS OF FACT
1. Service medical records are negative for evidence of
arthritis of the lumbar spine, evidence of a back injury, and
evidence of complaints concerning the back; the spine was
found to be normal on examination at discharge.
2. Arthritis of the lumbar spine was initially found in
1996, more than 26 years after the veteran's discharge from
service.
3. There is no competent medical opinion that relates the
veteran's current arthritis of the lumbar spine to active
service.
CONCLUSION OF LAW
Arthritis of the lumbar spine was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1131 (West 1991 & Supp. 2001);
38 C.F.R. §§ 3.307, 3.309 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that he has developed arthritis of the
lumbar spine as a result of active service. He notes that he
was a paratrooper during service, and believes that his jumps
damaged his spine, which caused his current arthritis.
VA has a duty to notify the veteran and his representative of
any information and evidence needed to substantiate and
complete a claim. VA also has a duty to assist the veteran
in obtaining evidence necessary to substantiate a claim.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 3(a), 114 Stat. 2096, 2096-2098 (2000) (to be codified as
amended at 38 U.S.C. § 5102 and 5103 (West 1991 & Supp.
2001); 66 Fed. Reg. 45630-32 (Aug. 29, 2001) (codified as
amended at 38 C.F.R. § 3.159). The Board finds that these
duties have been met to the degree that they are able to be
met by VA. The veteran received timely notice of the
decision on appeal, and he has been provided with a Statement
of the Case and Supplemental Statement of the Case that
contain the laws and regulations concerning his claim, and an
explanation of the reasons and bases for the denial of his
claim, which also indicated what evidence was needed to
prevail. In addition, VA has obtained all medical records
that have been identified by the veteran. However, as the
veteran's address changed in May 2000 and his current address
is unknown, VA has been unable to provide him with a current
examination, request additional records, or inform him of the
specific provisions of the VCAA. Without a current address,
the Board believes that any additional attempt to provide the
veteran with further development would be as futile as the
attempt to schedule his hearing, and the Board must conclude
that the duties to notify and assist have been completed to
the extent that they can be completed. Any failure in the
ability to complete these duties is solely the result of the
veteran's failure to provide his current address. Therefore,
the Board finds that a remand would serve no useful purpose
for this issue. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Any
"error" to the veteran resulting from this decision does
not affect the merits of his claim or substantive rights, for
the reasons discussed above, and is therefore, harmless. See
38 C.F.R. § 20.1102 (2001).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131. If arthritis becomes
manifest to a degree of 10 percent within one year of
separation from active service, then it is presumed to have
been incurred during active service, even though there is no
evidence of arthritis during service. This presumption is
rebuttable by affirmative evidence to the contrary.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
A review of the service medical records is negative for
evidence of a back disability. There is no record of an
injury to the back, or complaints of back problems. The
February 1970 discharge examination stated that the spine was
normal. The veteran denied a history of recurrent back pain
on a Report of Medical History obtained at that time.
The initial evidence of arthritis of the lumbar spine is
contained in a VA X-ray study conducted in July 1996. The
impression was moderate degenerative changes of the
lumbosacral spine. An October 1996 X-ray study also noted
degenerative changes of the dorsal spine, and retrolisthesis
of approximately two to three millimeters at either L1 to L2,
or T12 to L1. Neither of these X-ray studies contain a
medical opinion that relates the arthritis to active service.
The Board finds that entitlement to service connection for
degenerative arthritis of the lumbar spine is not warranted.
There is no evidence of a back injury or arthritis either
during active service, or within the one year presumptive
period following discharge from active service. Arthritis of
the lumbar spine was not demonstrated until 1996, which is
more than 26 years following the veterans' discharge from
active service. There is no medical opinion that relates the
veteran's current arthritis of the lumbar spine to active
service. The Board is aware of the veteran's sincere belief
that his arthritis is the result of his parachute jumps in
service, but the veteran is not a physician, and he is not
qualified to express a medical opinion as to such a
relationship. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). Therefore, the Board must find that entitlement to
service connection for arthritis of the spine is not
demonstrated.
ORDER
Entitlement to service connection for arthritis of the lumbar
spine is denied.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.